New Orleans Saints players kneel down before the U.S. anthem was played for an NFL football game against the Miami Dolphins at Wembley Stadium in London, Sunday Oct. 1, 2017. (AP Photo/Matt Dunham)
Never mistake your boss for James Madison.
The founding father was all about free speech and drafted the First Amendment. But your boss — whether in the office or on an NFL field — can call the shots about your free expression.
That’s largely lost in the “Take the knee” debate because these private employees who catch and throw on Sundays are being assailed by the most powerful man in government, a president who has absolutely no control over how Americans choose to protest.
The First Amendment only protects us against government interference with our right to speak, write, worship, petition and assemble. Employers, private property owners and businesses can largely set their own non-discriminatory policies about speech.
That includes Twitter, Facebook and other social media. They can bounce you off their services for any reason they’d like. The Constitution does not say “Mark Zuckerberg shall make no law…”
When you think about it, the only institution you can be confident won’t curtail your free speech is the government.
That’s why this comment by President Trump was so troubling: “Wouldn't you love to see one of these NFL owners, when somebody disrespects our flag, to say, ‘Get that son of a bitch off the field right now. Out! He’s fired. He’s fired!’
Trump is trying to use his considerable power and influence as president to stop the protests, using public pressure and a call for an economic boycott to force NFL owners to do what he can’t and what they’re not interested in doing. It’s an end run around the constitutional limit on his power.
There’s a chorus of critics saying entertainers and athletes shouldn’t take political positions on the job. There goes the music of Bob Dylan and Woody Guthrie, and the impact of Muhammad Ali, who was unstoppable both inside and outside the ring. Ronald Reagan and John Wayne were actors with strong public views.
Free speech at work is important. Many Trump supporters are strongly in favor of cake bakers being able to turn down gay couples and pastors being able to share their views from the pulpit.
When Colin Kaepernick kneeled during the national anthem, it was a sincere attempt to focus public attention on racial injustice in America. Disagree with his tactic if you wish, but his protest was courageous, with no personal or professional upside for him or those who kneeled with him.
“I looked to James 2:17, which states, 'Faith by itself, if it does not have works, is dead.' I knew I needed to stand up for what is right," Kaepernick teammate Eric Reid wrote in the New York Times on Monday. “We chose to kneel because it’s a respectful gesture. I remember thinking our posture was like a flag flown at half-mast to mark a tragedy.”
Most of the NFL protestors have been thoughtful and consistent in asserting that they mean no disrespect for this country or its armed forces, but the president has been persistent in his charge of disloyalty. Culture wars are not fought fairly or subtly, and visuals tend to dominate public perspective. For too many, this controversy just comes down to who loves the nation most.
That’s our challenge as a nation. We all need to understand that loving your country doesn’t mean loving everything about your country. Recognizing America’s problems and trying to do something about them is patriotic in its own way.
Trump isn’t letting up. On Monday, he applauded booing, writing “Many people booed the players who kneeled yesterday (which was a small percentage of total). These are fans who demand respect for our Flag!”
What we saw on Sunday — athletes locking arms in solidarity — and the nationwide use of speech and press to condemn Trump’s disturbing comments was the First Amendment in action.
Whether you agree with the NFL players’ protests or not, the greater issue is whether we are prepared to make this a more perfect union, with justice for all. It’s time to get back to work.
Ken Paulson is dean of the College of Media and Entertainment at Middle Tennessee State University and the president of the Newseum Institute’s First Amendment Center. This article was first published by USA TODAY, where Paulson is on the board of contributors.